IN
THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT
DAR ES SALAAM

MISC.
CIVIL CAUSE NO... 10OF
1998

CALICO
TEXTILE INDUSTRIES LTD APPLICANT

(Acting
through Nimrod Elireheemah Mkono, a duly appointed Receiver and
Manager)

— - -
VERSUS —-—

ZENON
INVESTMENTS LTD, )

REGISTRAR OF
TITLES. ......... )... RESPONDENTS

NBC HOLDING
CORPORATION..... ..)

RULING

MACKANJA,
J.

Messrs Calico
Textile Industries Limited, acting through Mr, Nimrod Rlireehemah
Mkonb, have brought these proceedings in which they
seeks several
prayers to be granted them, Mr. Mkono swears that he acts as
receiver and manager for the applicant, a matter
that has been hotly
contested by the respondents. Suffice it for now to any that the
application has been filed under section
95.Order
XLIII rule 2
and
Order XXXVII rule 1(a)
of the Civil Procedure Code, and sections 78(4)and
99(l)(b)(f)
of the Land Registration Ordinance, Cap, 334.And
the reliefs sought are as follows:-

(1)an
injunction restraining the first respondent by itself and/or its
agents of whatsoever description from selling, disposing of
or in any
way dealing with the title deed of the subject of this
action.

(2)the
caveat registered on 33th
August,
1997
in
the Land register as Filed Document No 88682
by
the first respondent be removed.

" I
sohemnly and sincerely declare that M/S Zenon Investments Limited
have interest in the above registered land and require
a caveat to be
registered and enforced against the land which is presently
registered in the name of M/s Calioo Textile Industries
Limited and
that the said M/s Zenon Investments Ltd, pursuant to an agreement
with the National Bank of Commerce, under which the
former purchased
the debts of CALICO TEXTILE INDUSTRIES LTD. owed to the. said Bank,
thereby by acquiring interest in the said
land, and is currently in
the process of having the said land registered in the name of Zenon
Investments Limited."

Mr. Mkono
depones further that although, any person who claims an interest in
any registered land may register a caveat against
a land, it is
common knowledge that no overseas body oorporate may hold or
register an interest in land in the United Republic
unless it is in
possession of a valid licence first had "and received pursuant
to the provisions of section 13of
the Land (law of Property and Conveyancing) Ordinance, Cap 11. The
first respondent, a foreign company, he said, had not been
granted
such licence at the time of registering such a caveat. According to
him it follows that the purported caveat is invalid,
and should
therefore be removed from the land register.

It is the
affidavit evidence of Mr. Mkono that in its letter dated 13th June,
1997 NBC not only admitted knowledge of his appointment
by TDFL, as
receiver and manager of CALICO, but also;

"(a)
confirmed to me in writing it has resolved to join TIB and TDFL in
the Receivership and that all the legal formalities pertaining
to the
joining of the Receivership would be communicated to me officially as
Receiver, and Manager by the Bank and Chief Counsel
who would also
deal with me on the title deeds...."

His letter
of 25
July,
1997,
points
out that the arrangement NBC were making with CALICO
to
have the first respondent settle Calico's debt would defeat and/or
prejudice the interest of TDFL, He therefore demanded in
that letter
that NBC should release the title deed to no other person but him as
the receiver and manager of the assets and properties
of CALICO.
That letter is Annexture NEM 4.
to
his affidavit. It is Mr. Mkono's contention that NBC completely
ignored his demand because a Notice of Assignment dated 5
September,
1997,
drawn
by their advocates and copied to him in part read as follows -

"We
give notice to you that,
pursuant to the terms of Assignment dated 6th
August,
1997,
National
Bank of Commerce has assigned all it's right, title and interest to
Zenon Investments Limited, under the Loan Agreement
and the Security
Documents referred to above. Annexed herewith marked-NEM 5is
a true copy of the Notice of Assignment."

So the
title deed in blatant disregard of his demand and, estensibly,
pursuant to the purported assignment executed by NBC in
favour of
the first respondent, was delivered to the first respondent by NBC.
As a consequence he has been prevented from selling
the property
which has now lost the price he could have received for the same.
That in a very conspicuous departure from
known land registration
practice, the respondent registered the first, respondent's caveat
without annexing to the caveat the
instrument of assignment
mentioned in the caveat and the Notice of Assignment. Following
this omission he argues that wherever
it is, that instrument:—

" (a)
is not effectual because, being a disposition, it has not been
registered as required by law;

(b) is
invalid because the First Respondent is a foreign company
and
may therefore not have power to hold any interest in land in the
Territory unless is in possession of a valid licence first
had and
received pursuant to the provisions of Section 13
of
the Land (Law of Property and Conveyancing) Ordinance Cap, 114;

-5
-

is invalid
because it amounts to a fraudulent preference against the creditors
of CALICO, including TDFI

cannot be
acted upon by any competent authority because it has not been duly
stamped; and

(e)unlawful
because, contrary to the expressprohibition of the law, it
purperts to place a sum in Tanzanian currency to the credit of a
person resident outside Tanzania,
to wit the First Respondent."

It is the
applicant's contention that the first respondent's, caveat is so
flawed and does not satisfy the requirements of
relevant, laws. It
is not registrable and should, therefore, be removed from the land
register. Indeed, it is their argument
that NBC must be seen to
have fully discharged CALICO from its obligations to NBC at the
point it accepted payment from the first
respondent in full
satisfaction of the debt owed to NBC by CALICO, So, it is the
applicant's case that since it is claimed that
acceptances of
payment from the first respondent by NBC operated as full discharge
of CALICO, it follows that there was left
no outstanding obligation
(due from CALICO) ' which NBC could "assign" to the first
respondent. In other words, under
the purported instrument of
assignment there was no condition passing from NBC to the first
respondent and that agreement is
therefore void. It is in the
evidence of Mr, Mkono that the first respondent's caveat is, on this
additional ground, also invalid
because it is derived from a void
agreement. For the like reasons, the detention of the title deed by
the first respondent is
wrongful. He concludes his evidence by
saying that:-

" In
the circumstances and for the reasons aforesaid, I do humbly beg
this Honourable Court to order the Second Respondent
to remove the
First Respondent's Caveat from the Land Register, to order the First
Respondent to deposit in Court the Title Deed
as to facilitate its
release to the Applicant and for an injunction, pending the disposal
of the application, restraining the
First Respondent by itself,
its servant or agent from dealing with the Title Deed in any way.".

The
respondents are opposing the application and that". they have
dene with considerable verve. First, the counter affidavit
evidence
ofMehbub
Alam Chatur raises a number of preliminary points of obections and
issues of law as follows.-
(1)that
the format of chamber summons and of the suppotive affidavit is not
in accordance with the provisions of the Civil Procedure
Code under
which the application is-brought;

that since
this chamber application is effectively brought under Order XLIII
rule 2
and
Order XXXVII rule 1(a)
no injunction can be prayed for because the same pends nothing
against any of the three respondents, jointly or severally;

that the
prayers indicated in the chamber summons are absolute and
competely contrary to the provision of Order XXXVII rule
1(a)
which strictly allows temporary injunctions to be issued "pending
the disposal of the suit";

(4) that
there is no course of action disclosed whether in the chamber
summons or in the affidavit of Mr, Mkono as receiver
and manager
appointed by the Tanzania Development Finance Limited (TDFL), about
six years ago, to justfy Calico Textile Industries
Limited making
this application against, any and/or all the respondents;

(5)
that
third respondent is wrongly joined as a respondent in as much as the
disputed Notice of Deposit over the land registered
under
certificate of Title No, 15056
was
a banking asset to the defunt National Bank of Commerce and cannot,
therefore, fall under the provisions of section 10(l)(e)
which vests

- the third
respondent with solely non-hanking assets and liabilities of the
former National

Bank of
Commerce; in the alternative, the interest in the banking assets was
assigned by NBC to Zenon Investment Limited;

(6)
that
the affidavit of Nimrod Elirehemah Mkono is hopelessly defective
having been attested by a Mrs. F.M., Ngalomba, learned
counsel, who
is an employee of TDFL, the principal and client of Mr, Mkono acting
in his capacity as receiver manager.

In an
affidavit he has filed in reply to counter affidavit Mr, Mkono
invites me to strike out the counter affidavit because the
deponent
being an "unqualfied person" is not authorised to swear to
the facts contained in the counter affidavit nor
is he qualified to
draw that document.

I will now,
from the above backgound, consider and determine the preliminary
issues of objection on points of law. This will
be done in tandem
with consideration the applicant's own objections against the
validity or otherwise of the counter affidavit.
Let me say right
away that learned counsel have approached their task with industry
and scholarship, I have found the cases they
have cited to be very
useful. Let me also say that. what cries for a decision now is not
the application on the merits; only
points of law that have been
raised will be considered, I will begin with the first preliminary
objection, and proceed,to the
decide the others in their
relationship with the reliefs that aresought in the chamber
application.

Learned
defence counsel, namely, Mr, Thomas Bashite Mihayo, Mr. Eric Sikujua
Ng'maryo and Ms. Jessie Stephen Maguto, have argued
in respect of
the first objection that the chamber summons and its accompanying
affidavit are so defective and so irregularly
filed that they
cannot, in fairness to the law, be said to have properly initiated
an application for an order, for temporary
injunction before this
Court. It is their contention that the reply to the counter
affidavit of Mahebub Alam Chatur by
Nimrod Elirehemah, Mkono
brought no new evidence other than repeating the contents of his
earlier affidavit. That the reply
does not traverse the several
points of law raised in the preliminary objections in the counter
affidavit of Mahebub Alam Chatur,
Instead, the written submissions
by Professor Zebron Steven Gondwe in Item "A" of his
Summary of Argument and later,
and with virtually no eleboration
in paragraph 1.1
and
1.2
raised
preliminary objection on a point of law. However, in the presence
of preliminary objection being raised by both parties
in a matter,
they ask whose should be heard and determined first? They opine
that it is the respondents objection which must
be considered and
determined first, and only upon the court dismissing the
respondents' preliminary objection can the applicant's
objection
then be heard and determined. They cited Woodroffe and Asser Ali,
learned authors of the book, Woodroffe &
Ammer Ali's Civil Procedure in British India, 2nd Edition(1916)at
page 842
when
examining Order XVII Rule 1
of
the Indian Code of Civil Procedure (1908)which
is in pari
materia
with Order XVIII Rile 1
of
our own Civil Procedure Code, 1966,
in
support of their arguments. The learned authors say that:-

" The
party on whom the onus
probandi
lies as developed by the record must begin. At the hearing of a case
on apreliminary issue the defendant by whom the issue israised
has the right to begin."

The issue as
to which preliminary points of law are to be determined first
attracts no controversay at all. In my view as has
always been the
case, whoever alleges the existence or otherwise of a fact has the
onus
probandi
to prove what he alleges Here it is part of the defence that the
application is untenable at law So it must first be established
whether or not it is so. It is after that that attacks on the
defence will be considered. Itherefore
propose to deal with the defence objection first.

This
brings me to the first preliminary objection, namely, the contention
that the applicant's chamber summons and affidavit
are deficient in
format. Learned defence counsel have drawn myattention
to the contention that court documents, includingchamber
summons
and affidavits have prescribed formats with which parties to civil
litigations are bound to comply. It is their
case that the requirement to conform to prescribed forms
in
civil procedure is laid down in S. 101
(2)
of
the Civil Procedure Code 1966.
Although
they concede that so far the Chief Justice has not replaced the
Indian forms the use ofthose
forms binds parties by virtue of S. 101(2)
and
(3)
of
the Civil Procedure Code. I am now invited to hold that the
affidavit of Nimrod Elirehemah Mkono and its summons have a title
that does not even remotely resemble the form given in the First
Schedule to the Indian Code of Civil Procedure, which they allege
is
the legally prescribed title for all proceedings filed in the court.
A copy of that form is Annexture MMN 2
to
the defence lawyers written. submission.

It is
reproduced here for ease of reference.

Appendixes
to the First Schedule Forms.

APPENDIX A..

PLEADINGS

(1) TITLES
OF SUITS

IN THE COURT
OFA. B. (add description and residence)... Plaintiff

versus

C. D. (add
description and residence).........Defendant

(2)
DESCRIPTIONS OF PARTIES IN PARTICULAR Cases
The
Secretary of State for India in Council

The Advocate
General of The Collector of

The State of

A.
B., a public officer of the C. D. Company

The A. B.
Company, Limited,
having to registered
office at

A. B. ( add
description and residence), on behalf of himself and all other
creditor of C. D. Late of (add description and residence).

A. B. ( add
description and resident) on behalf of himself and all otherholders
of debenture issued by theCOMPANY
LIMITED

The Official
Receiver

A. B., a
minor (add description and residence), by C.D.( or by the Court of
Wards), his next friend.

I agree with
learned defence counsel that, in principle, where our procedural law
lacks in some material particular we can conveniently
adopt
procedures that obtain in comparable jurisdictions, especially India
from where our Civil Procedure Code was derived. I
am not persuaded,
however, that deviation from a court format used in India per
se
would constitute a ground which could lead to the rendition of a
procedding as being invalid. In this connection.

I
uphold the submissions of Prof. Zebron Steven Gondwe, learned
counsel for the applicant, who argues that the objective of the
various forms cited by learned defence counsel is no more than the
promotion of coherence, certainty and flow in preparing
pleadings.
In any case, Appendix MNM 2 relates to "Titles of suits".
An application such as this one, although it is
a civil proceeding,
does not constitute a suit. In my view a suit is one that is
instituted by a plaint, in which the plaintiff
sues and the
defendant resists the claim in the manner provided in the Civil
Procedure Code.

Especially,
the institution of a suit must comply with Orders I - VIII of the
Civil Prodedure Code, or under the Civil Procedure
Code
applicable to primary courts. Any proceeding of a civil nature
that is instituted otherwise than is provided above is
not a suit
and, therefore, must be governed by different regulations. At any
rate the defence has not shown how non-compliance
with the format
in Appendix MNM 2 has affected the validity of this application.
This problably explains Prof. Gondwe's wonderment
as to why, if the
chamber summons and the supporting affidavit were wrongly headed,
the respondents have their pleadings in the
same format they attack.
To that extent this objection lacks merit and it would fail.

It is
contended in the second point of objection that this application is
untenable because it contains a prayer for an injunctive
relief in
the absence of a suit which is pending

in
Court on which it would have been founded. As it is obvious from
the record of proceedings the applicant cites Order XXXVI
rule 1(a)
of the Civil Procedure Code as the basis for making this
application. Order XXXVII deals with temporary orders. Rule
1(a)
provides:-

" 1.
Where in
any suit
it
is proved
by affidavit or
otherwise:-(a)
that
any
property
in
dispute
in a suit is in danger of
being
wasted, damaged, or alienanted by any party to
the
suit or suffer loss of value by reason of
the
continued use by any party to the suit or wrongly sold in execution
of a decree...

(b) the
court may order grant a temporary injunction to
restrain
such act, or make such other order for the prupose of staying and
preventing the wasting, damaging, alienation, sale,
loss in value,
removal or disposition of the property as the court thinks fit,
until the disposal of the suit or
until
further orders.

The
defence lawyers contend that the citation of this particular
provision which is for temporary injunction and interlocutory
orders
necessarily gives the whole application a temporary and
interlocutory bearing. Yet this application is obviously for orders
absolute as prayed for under Ss. 78(4)
and
99(l)(b)
and (f) of the Land Registration Ordinance, Cap. 334
and,
contrary to the very essence of Order XXXVII rule l(a), there is no
suit that was filed prior to the application. It is
therefore the
contention of the defence that the above state of affairs makes the
reliefs sought impossible to grant. For that
reason alone they
invite me to dismiss the application in
its
entirety.

In his
reply Prof. Gondwe argues that a temporary injunction is not the
sole relief that is sought so that if it fails then the
entire
application must follow suit. To that extent I agree with him, but
he has not addressed the issue whether an application
for an
injunction can be sought in the absence of a suit. It remains to
be seen, as the prayer goes in the chamber summons
and as Prof.
Gondwe argues, that the injunction can be granted to restrain the
first respondent from selling, disposing of
or in any way dealing
with the land or the title deed in respect thereof pending the
determination of the application.

It
is the applicant's case thatthe
application is maintainable because, as pointed out earlier, the
injunctive relief is one of several prayers. He isconviced
that he is entitled to proceed the way he has done in terms of
sections 78(4)and
99(l)(b)
and (f) of the Land Registration Ordinance, Cap, 334
under
which the application is brought. These sections provide as
follows:-

"78(1)...

(4)
The
High Court, on the application of the owner of the estate or
interedt affected, may summon the caveator to attend and show
cause
why such caveat should not be removed and thereupon the High
Court may make such order, either ex
parte
or otherwise as it thinks fit

99(1)
Subject
to any express provisions of this Ordinance the land register may be
rectified pursuant to an order of the High Court
or by the
Regisrar, subject to an, appeal to the High Court, in any of the
following cases -

(b) where
the High Court, on the application of any person who is aggrieved by
any memorial made in, or by the omission of any
memorial from the
land register, or by any default being made, or unnecessary delay
taking place, in the inscription of any memorial
in the land
register, makes an order for the rectification of the land register

f) in any
other case, where, by reaon of any error, or omission in the land
register, or by reason of any memorial made under
a mistake, or for
other sufficient cause it may be deemed just to rectify the land
register,"

Accordingly,
Prof, Gondwe submits that it will be readily apparent that section
78(4)
aforesaid
permits the applicant to commence" proceedings as he has done,
by way of an application and that section 99(l)
and (f) empowers this Court to issue orders envisaged therein.

As regards
the procedure by which an application for a temporary relief which
is not based on a suit Prof. Gondwe submits that
the instant
application is akin to the "originating summons" obtaining
under English practice. He then refers to
the definition of that
expression and that of the term "summons" in Osbon's
Concise Law Dictionary.
5th
Edition.
He does not mention the pages, but according to theSeventh
Edition of that law disctionary that expression and term of law are
defined at pages316
and
241,
respectively. The definitions are as follows:-

Summons.A.document
issued from the office of a court of justice,calling upon the person
to whom it is directed to attend
before
a judge 03?
officer
of the court. In the High Court of Justice a summons is a mode of
making an application to a judge or master in chambers
for the
decision of matters of procedure prior to or in lieu of the hearing
of an action in court e.g., a summons for directions
(q.v.) (see
0rd.
54).

Originating
Summons
Proceedings may be begun by originating summons, as well as by
writ, or petition (Ord. 5)
Proceedings
suitable for commencement by originating summons are where the
principal question is the construction of an Act, statutory
instrument, deed, will contract or other document or some other
question of law and where there is unlikely to be any substial
dispute of fact.

Originating
summons is issued in the Queen's Bench Division as well as in the
Chancery Divion, expect that claims in tort (other
than trespass to
land) or for fraud, breach of promise, infringement of patents,
personal injury, and fatal accidents cases must
be began by writ
(Ord. 5,28)

Prof,
Gondwe winds up, his argument on this issue saying that in view or
the foregoing, it is patent that the instant application,
lodged
under section 78(4)
of
the Land Registration Ordinance, is an originating summons which can
form the basis, as is the case-, here, of an interlocutory
application.

There is no
doubt that the practice and procedure obtaining-in England is as
Prof. Gondwe has pointed out, He is borne out on
this by eminent
jurists of English jurisprudence on the subject of pre-emptive
justice. The learned authors of Halsbury's
Laws of England
Fourth Edition in paragraph 1048
of
Volume 24,say
that an application for an injunction may be made by any party to a
cause or matter before of after trial, whether or not a claim
for
the injunction was included in the party's originating summons.
The learned authors of Commercial
Litigation; Pre
- emptive
Remedies
by Ian S. Golderein, M. K, and K. H. P. Wilkinson, LL.B (Hons) go
further; they cite the precedural order under which an application
for an injunction may be made by an originating summons. This
they say at pages 30
to
32
of
their book. The most relevant parts are as follows:—

" PART
C: PRACTICE AND PROCEDURE

1.
Introduction

1. Ord.
29,
r.l:

"(l)An
application for the grant of an injunction may be made by any
party to a cause or matter before or after the trial
of the cause or
matter, whether or not a .... claim for the injunction was included
in that party's writ, originating summons,
counterclaim or third
party notice, as the case may be.

(2)Where
the applicant is the plaintiff and the case is one of urgency such
application may be made ex parte on affidavit but, except
as
aforesaid, such application must be made by motion or summons.

(3)
The
plaintiff may not make such an application before the issue of the
writ or originating summons by which the cause or matter
is to be
begun except where the case is one of urgency, and in that case the
injunction applied for may be granted on terms providing
for the
issue of the writ or summons and such other terms if any, as the
Court thinks fit".

There is no
doubt that the English provisions that govern the institution of
applications for pre-emptive reliefs in the form
of temporary
injunctions cover a vide range of civil proceedings.

In my
view this is so because the law there relates, to "a cause or
matter ..." The Civil Procedure Code under which
we operate
is not as wide as the English law. Order XXXVII of the Civil
Procedure Code lays down a specific procedure which
governs any
party who desires to institute an application for a temporary
injunction.

The
instant application has been brought under rule 1(a) of the said
Order; it provides:-

"1.
Where in any suit it is proved by affidavit or otherwise -

(a)That
any. property in dispute in a suit is in danger of being wasted,
damaged, or alienanted by any party to the suit ...

(b)...

the court
may by order grant a temporary injunction to restrain such act....
until the disposal of the suit, or until further
orders."

For
purposes of the Civil Procedure Code a court may grant a temporary
injunction to protect property that is the subject of
a
suit
pending the determination of that suit or until any further orders
are made in relation to that suit. An order for a temporary
injunction, therefore, cannot be made in a proceeding which is not
stricto
sensu,
a suit. I am fortivied in this by the scholarly commentary on
Order XXXIX l(a) of the
Indian Code of Civil Procedureas
made by the learned authors of Sackar's Law of Civil Procedure.

Eight
Edition, June 1,
1992.
That
Order is in pari
materia
- with our Order XXXVII rule l(a); the authors say this at page
1416:"The
principles governing the grant of injunction are well- settled. The
object is to proserve the status
quo
while rights are being litigated and the nus is on the plaintiff to
show his need for the injunction."

The term
"Plaintiff" in litigation is based on the one,who who
brings and prosecutes a suit. It is a term that refers
to the
party in a suit who has lodged a claim for reliefs in terms the
Civil Procedure Code as earlier pointed out. So there
must be a
suit -pending in court in respect of which an application for an
injunction will be made.

Of course I
also have in mind the English practice. Foreign practice will be
employed where our own law has made no provision.
Where we have a
law in place courts in this country will limit themselves to
emulating sound principles of law and of practice
from foreign
jurisdictions of comperable system of justice. It is in these
circumstances I am persuaded to accept the defence
proposition
that an application for an injunction will be invalid if it is not
based on a suit which is pending in court, for,
as I have said, an
application
such as this one is not a suit. The prayer for an injunction would
therefore be refused.

Learned
defence counsel contend that the supporting affidavit that was sworn
by Mr Mkono is incurably defective. According to
them
the counter affidavit of Mr. Mahbub A. Chatur, having been not
controverted, establishes that Mrs. F. M. Ngalomba. the commissioner
for oaths before whom Mr. Mkono swore the affidavit, is an
employee of TDFL. It is their further submission that in paragraph
4
of
the affidavit of Mr, Mkono, it is unequivocally stated that TDFL
appointed the receiver and manager of Calico. Mr. Mkono is
the
deponent of the affidavit attested by Mrs, Ngalomba who is an
employee of TDFL, Thus, both Mr, Mkono and Mrs. Ngalomba are
persons
employed by TDFL and are acting on its behalf. Learned counsel have
drawn ay attention to the fact that the role of an
officer who
attests the signature of a deponent is that of a Commissioner for
Oaths.

That
the law that regulates the powers and duties of Commissioner for and
Oaths is the Notaries Public Commissioners for Oaths
Ordinance Cap,
12.
They
argue that that particular piece of legislation is categorical in
its total restriction of the exercise of the powers by
a
Commissioner for Oaths in proceedings or matter in which that
Commissioner is interested, So, because of their mutual interest
in
the proceedings on behalf of their principal, TDFL, learned defence
counsel would have mehold
that the attention of the affidavit of Mr, Mkono by Mrs. Ngalomba is
irreparably defective. They argue that by reason of
the alleged
defects, there is ano application which this Court. can adjudicated
upon. They have cited the decision of this
Court, Onyiuke, J., in
The
Project Planning Consultants (Tanzania) V. Tanzania Audit
Corporation1974
LRT
n.10
in
support of their arguments.

The
learned counsel for the applicants puts forward the proposition
that section 7
of
The Notaries Public
and Commissioner for OathsOrdinance,
Cap. 12,
is
directed not at the instrument, but at the conduct of the
commissioners for oaths. Had the Legislature intended any sanctions
against the affected instrument it would have made specific
provision therefor. He give as examples section of the Advocates
Ordinance and section 46of
the Stamp Duty Act, 1972
which
expressly pronnounce the fate of a non-complying instrument. He
makes the further point that the respondents themselves
concede that
TDFL is not a party to this application.

So
to him it is difficult in such circumstances to comprehend how Mrs.
Ngalomba, a mere employee of TDFL, would have such interest,
in this
matter as would trigger the operation of section 7
of
the Notaries Public and Commissioners for Oaths Ordinance. They
submit that Mrs. Ngalomba is a duly admitted advocate
and
Commissioner for Oaths who has no interest in this matter. In fact
the definition of "interest" and especially
the
definition of "indirect interest" completely exclude her
attestation of the affidavit that supports the application
from the
overview of the provisions aforesaid.

Even
more damaging to therespondent's
argument he contended, is the fact that the case they are relyingoni.e.
Project
Planning Consultants (Tanzania) v.
Tanzania
Audit Corporation(1974
LRT
No. 10
is
easily distinguishable and that,
in
fact, confirms theapplicant's
argument. In that case it was held thatan
officer of the Tanzania Legal Corporation cannot act as aCommissioner
for Oaths in any proceedings in which thatcorporation
is advocate toany
of the parties to the proceedings. In theinstant
case TDFL is not an advocate to any of the parties. Indeed, it Is
not evena
party to the application, so it is no wonder that therespondents
did not annex
to their written submissions what one would have thought a crucial
decision for their argument; it is because the same case
defeats
their argument.

After having
argued with so much vitality, Prof, Gondwe, submitted that where a
matter is heard by way of written submissions,
as is the case here,
a reply, constitutes the applicant's final address to the Court.
He
cited Jashbhai C. Patel v. B.D.Joshi.
(1950
- 51) Vol.
XVII - XVIII E. A. C. A. where it was held that even during a
party's final address Court has the descretion to entertain
the
substitution of properly drawn instrument for one which exhibits
same defect(s) in form where no injury has been occasioned
to the
other party. It is contended that in the instant case the
attestation in question has occassioned noinjury
to the respondents. "...
We
are lodging herewith 6
copies
of the re-sworn Affidavit of the Applicant, and the only changes
therein are the date of making the oath the signature
of the
Commissioner for Oaths, the stamp of said Commissioner and the
addresses of the Respondents. The rest of the Affidavitis
unchanged. My Lord, as theRespondents
concede in paragraph 66
of
their Submission, this Application involves a ' complexity-of
issues' which we believe can only be resolved if this Application
is heard on its merits. My lord, under section ,95
and
97
or
the Code, it is within this Honourable Court's discretion to admit
the re-sworn Affidavit and to order re-service thereof
on the
Respondents."

The
controversay, really, if any, lies in the construction of section 7
of
the Notary Public and Commissioners for Oaths Ordinance. It
provides:-

" 7. No
commissioner for Oaths shall exercise any of his powers as a
commissioner for oaths in any proceedings or matter
in which he is
advocate to the parties to proceedings or matter in which he is
interested"

These
provisions create two situations in which a commissioner for oaths
is disqualified, namely:

(1)he/she
shall not exercise any of his powers is anyproceeding in which
he is advocate to the parties;

(2)he/she
is also barred from exercising such powers in proceedings or matter
in which he is interested;

Of the two
limbs, I
am
persuaded by Prof. Gondwe that it has not been established that Mrs.
Mgalomba who attested Mr. Nimrod M. Mkono's affidavit
has at any
time acted for the parties. As to the second limb there is no
doubt that she is an employee of TDFL, Mr, Mkono's
principals in his
capacity as receiver manager of the applicant. The issue is whether
her employment is evidence of sufficiency
of interest in these
proceedings. Prof, Gondwe argues that Mrs. Ngalomba has no
interest in TDFL and has cited the definition
of term "interest"
in Osborn's
Concide Law Disctionary,
to be:-

"
Interest
A person is said to have interest in a thing when, he has rights,
titles, advantages, duties, liabilities concerned with it,
whether
present, or future, adcertained or potential, provided they are not
too remote. ..."

Some of the
meanings ascribed to that word "interest" by the Collins
English Dictionary,
Second Edition is this:-

"5.
benefit,
advantage; 6.a,
a right, share of claim, esp. in a business or property."

The issue
now is whether Mrs, Ngalomba has an interest in TDFL.

There is no
doubt that as an employee she has an interest in TDFL from several
standpoints. She has rights accruing from her
employment; she has
duties and obligations under a contract of employment. She derives
advantages from her relation with TDFL.
She has a right to continue
working with TDFL and to be remunarated commensurately. In these
circumstances TDFL is her principal
in whose continued survival
she must have a legimate interest. Does this interest bar her to act
as a commissioner for oaths
in a judicial proceeding in which her
employer is interested?

Prof.
Gondwe has pointed out that TDFL is not a party to this application.
That part of learned counsel's submissions is quite
attractive but
it is entirely untenable. The affidavit of Mr, Mkono clearly shows
that the present applicant is more of a frontman
for TDFL and that
what really appears to have prompted this application are the
direct interests of TDFL. That this is the
case can be seen from
paragraphs 3
and
4of
that affidavit, I will reproduceof
then here for ease reference.

"3.
Sometime
ago CALICO TEXTILE INDUSTRIES LIMITED (CALICO) executed a Debanture,
dated 20 Debanture, dated 20
December
1985
TO
TANZANIA DEVELOPMENT FINANCE COMPANY LTD (TDFL) under which CALICO
as benefial owner CHARGED, inter
alia its
Lease (registered on 10
June,
1960
as
Title Number 15056
under
Folio Number 9074,
serial
Number 47(60)
(the
"property") with a first specific charge as security for
the payment of
monies due from CALICO to TDFL.

By a Deed of
Appointment
of Receiver & Manager dated 7
April
1992,
TDFL
appointed me to be their Receiver & Manager of
all
properties and assets whatsoever charged under the CALICO
Debanture..."

So
although not directly a party TDFL is a constractive party tothe
proceedings because the powers the receiver manager exercise are
those of TDFL in the management of CALICO which no longer
can act
through its own principal officers. To that extent, the affairs of
CALICO are inextricably interwoven with those
of TDFL. The
interests of CALICO are now merged with those of TDFL. To that
extent Mrs. Ngalomba has an interest in the affairs
of CALICO as
well. Her attestation of Mr, Mkono's affidavit has consequently
contravened the provisions of section 7
of
the Notaries Public and Commissioners for Oaths Ordinance. In this
connection I find as useful reference the decision of
this Court,
Onyiuke, J., in the case of The
Project Planning Consultants (Tanzania)
v. Tanzania Audit Corporation1974
LRT n. 10
where
it was held, inter
alia;

" The
purpose of this section (Section 7
of
Cap. 12)
is
to ensure the independence of a Commissioner for Oaths as an officer
of Court and to avoid any. possible clash of interest
in the
discharge of his duties as a Commissioner for Oaths. The history
of Commissioners for Oaths' is given at Page 4l7
in
Volume I of the Dictionary of English Law by Earl Jewitt.
According to his book, Masters extraordinary in Chancery acted
in
very early times as Commissioners to administer Oaths to persons
making affidavits before them concerning Chancery Suits and
Judges
of the Common Law Courts were authorised under statute by Commission
to empower persons to take affidavits for a fee concerning
Common
Law actions. The Commissioners for Oaths Act 1889
which amends
and consolidates twenty-four enactments on the subject, enacts S.l
that the Lord Chancellor, may, from time to time,
by Commission
signed by him to appoint practising solicitors or other fit and
proper persons' to. be Commissioners for Oaths
with power, in
England or elsewhere, to administer oath (sic) or take any affidavit
for the purposes of any Court in England
but it is provided that a
Commissioner may not act in any proceeding in which he is solicitor
to any of the parties to the proceeding
or in which he is
interested. This latter provision has been reproduced in s 7
of
our Notaries Public and Commissioner (sic) for Oaths Ordinance..."

In the view
of the foregoing I will strike out the affidavit in support of the
present application as not been (sic) properly
sworn. Order XLIII
Rule 2 requires every Chamber application to be supported by an
affidavit. Since there is no affidavit supporting,this
application,
I will strike out the application also."

Prof. Gondwe
has contended that if it is held that the attestation is fatally
irregular, the affidavit be found to be in order
because Parliament
directes sanction against commissioners for oaths and not against
the instruments they execute. In my view
that argument is
untenable nor are the examples he gave of any assistance. If the
Legislature thought that provisions similar
to those that apply to
an unstamped document were to apply to irregularly attested
affidavits, nothing would have stopped it
from saying so. Since
the words employed in section 7
of
the
Notaries Public and Commissioners for Oaths Ordinance are
unambiguous this Court is not entitled to introduce a foreign
meaning to that statute for in doing so the intention of Parliament
will be rendured absurd. Hence the affidavit in question is
fatally
defective and nothing can be done that will save it.

Prof. Gondwe
has persued another line of argument. He contends that if the
affidavit supporting the application is found to
be defective, it
can be cured by filing another affidavit containing the same facts,
which, in fact he did without leave of court.
He has cited
Jashbhai
C. Patel v. B. D. Joshi(1950
- 51) Vol.
XVII – XVIII E. A. C.A. 42, a case that originated from the
Supreme Court of Kenya, for the proposition that a party may
be
allowed to substitute a properly drawn instrument for one that is
defective. But, surely the substitution of a property drawn
instrument for a defective one is not. the same as substituting a
properly attested affidavit with one that is defective. The
reason
for this proposition is not for to fetch,because an affidavit is the
evidence on which an application is founded. This
means, then,
that throughout the life of these proceedings there was no affidavit
that supportsapplication
until the applicant attempted to introduce fresh evidence to
beath life, into a nothing; for an application is
in order only if
it is supported by an affidavit. Since, therefore, the affidavit
supporting the application was fatally defective
when these
proceedings were instituted, the application was invalid ab initio;
nothing could be done to it that could save it.

What is also
unusual is the manner the applicant introduced another affidavit
into the record without leave of court, "To
say the least
that was very irregular. Every practising lawyer will know that an
affidavit is evidence, It cannot be introduced
at a time, when the
trial of the application was already concluded. To act as the
applicant did is akin to allowing a plaintiff
to adduce oral
evidence after the close of the defence in substitution for
evidence that he will discover cannot prove his
case. What,
therefore, is entitled the SECOND AFFIDAVIT of Mr. Mkono was
irregularly introduced into the record of proceedings.In
that circumstance it has no evidential value and I now order that it
be expunged from. the record of proceedings. It is
upon the
foregoing reasons that I would hold that the application is
totally invalid ab initio.

Another
attack on the validity of the application is in the defence
contention that the application in relation to the second
andthird
reliefs is time-barred. This objection Is not one of those that
were, raised in the counter affidavit. It has been raised
in terms
of section 3(1) of the Law of Limitation Act, 1971,
which
provides that:-

"3.(l)
Subject to the provisions of this Act, every proceedings described
in the first column of the First Schedule to thisAct
and which is instituted after the period, of limitation prescribed
therefor opposite thereto in the second column, shall
be dismissed
whether or
not
limitation has been set up as a defence”

It
is learned defence counsel's contention that time began to run as
regards the second relief, an 13th August, 1997
when
the aveat complained of was registered and that
time
in respect of the third prayer began to accrue on 7th
July,
1970.

Since
the application was filed on 29th
January,
1998,
therefore,
the second prayer in the chamber summons came fire months and seven
days after the date the cause of action arose,
which is well beyond
the time allowed by law, namely, sixty days. That the third prayer
was made some twenty seven years, six
months and thirteen days
from
the date the cause of action arose. So that the alleged inactio
lasted for twenty seven odd years, but the law allows only
six
months.

Learned
counsel for the applicant has different views on limitation He
contends that the argument concerning limitation is completely
irrelevant. The applicant, as pointed out, is seeking to retrieve
Calico's title deed from the first respondent and to have
certain
memorials in the land register removed or, as the case may be, be
deleted, That is to say, pending the said removedanddelition,
the wrongs perpertrated by the respondents will continue unabated.
In further difference with the respondents Prof,
Gondwe argues ;that
section 7
of
the Law of Limitation Act, provides that where there is a continuing
wrong a fresh period of limitation shall begin to run
at every
moment of the time during which the wrong continues.

In my
considerered view the period of limitation is tied up with TDFL'S
resoolved to put Calico under receivership in a bid
to realise its
interests under the debanture. That was put into effect when, on
7th April 1992, Mr. N. E. Mkono was appointed
receiver and manager.
It is from that time that any action by third parties that
interfered with TDFL'S rights over Calico's
property became
wrongful, hence TBFL'S
right
to sue to enforce those rights. Nothing adverse to TDFL'S rights
took place until 18th
August,
1997,
when
a caveat was registered by the second respondent. The caveat
checked the execution of the decision of Mr. Mkono as receiver
and
manager to sell Calico's assets, to unable him realise the
mortgage in favour of TDFL. The registration of the caveat
is one
action which I do find not to be continuous. If, therefore, the
registration of the caveat be an actionable wrong, it
is not a
continuous one. In that circumstance I would uphold the contention
by learned defence counsel that the period of limitation
to
institute proceedings to have the caveat removed or deleted from the
land register began to run on 18th
August,
1997.
On
the same parity of reasoning the contention that the period for
limitation in respect of the third prayer began to accrue
on the
date alleged by the respondents, that is to say, on the 7th
of
July, 1970,
is
rejected. It is my judgment that both prayers are governed by the
same circumstances as regards limitation. Consequently,
were it
that the application was potent in other - ... respects, the third
prayer would have been in time.

In yet
another objection the respondents are contending that Mr. Mkono has
no right to be heard on behalf of Calico, It is submitted
on
their behalf that the entire purpose of this application is to
unable Nimrod Elirchemah Mkono, as a receiver and manger
of Calico
Textile Industries Limited, to sell the land registered in the name
of Calico Industries Limited under C.T. 15056.
They
argue that Mr, Mkono can not be struggling to remove caveats from
the aforesaid title, praying for the title to be released
to him
then sell the land registered under the title for the benefit of
Calico Textile Industries Limited. To wind up their
submissions on
this point they pose this question: for whom, then, is Mr. Mkono
acting in filing this application? To learned
defence counsel,
apart from naming the applicant, Mr. Mkono's affidavit gives no
indication that he is in any way acting for
Calico and it does not
reveal how the prayers made in the chamber summons can be of any use
to Calico. Rather, Mr. Mkono is
acting for his purported
principal, the Tanzania Development Finance Limited.

So they
observe that to indicate Calico Textile Industries Limited as a
party to this application is erroneous both in law as
well as in
fact.

I have given
due consideration, as indeed I have to, to the argument that this
application cannot be prosecuted by Mr. Mkono on
behalf of Calico
presumably because he has not been instructed by the applicant
company. In my view, and as Prof, Gondwe correctly argues,
it is
not the application which is erreneous in law as well as in fact.
It is the attack on Mr, Mkono's right as receiver and
manager to
maintain these proceedings which is erreneous.

Because
once Mr. Mkono was appointed receiver and manager to enforce TDFL'
s rights under the debanture he at once was clothed
with power to do
what Calico and TDFL agreed to in case Calico defaulted to repay
the loan that is evidenced by the debanture.
I am therefore is
total agreement with learned counsel for the applicant that
condition 6(l)
of the TDFL debanture empowered the applicant to take possession of
collect and get in all or any part of the property belonging
to
Calico that was mortgaged by Calico as security for the loan that
TDFL advanced to Calico. Condition 5 of the debanture
empowers
the holder, TDFL, to appoint a receiver after "....the
principal moneys hereby secured have become immediately
payable ..."
The money becomes immediately payable under certain conditions of
the loan agreement. The opening part
of condition 6
declares
that the receiver is the agent of the borrower company and that:-

"...he
shall have authority and be entitled to exercise the powers
hereinafter setforth in addition to and without limiting
any general
power conferred on him by law

(1) to
take possession of, collect and get in all or any part of the
mortgaged premises and for that purpose to take proceedings in
the
name of the company or otherwise as may seen expedient."

This
objection would fail.

The last
objection that has been raised by the respodent is the contention
that the third respondent is wrongly joined. They rely
on Section
10(l)(e)
of the National Bank of Commerce (Reorganization and Vesting of
Assets and Liabilities) Act, No. 23
of
1997
which
roads as follows:-

"10
-
(l) Consequent upon the split of the former bank into the Company,
the NMB and the Corporation, all assets and the liabilities
relating
to banking business, to which the former bank was entitled or
subject, immediately before the vesting date, with effect
from the
1st
day.
of October, 1997
by
vitue of this section and without further assurance -

(a)•••
(b)... (c)... (d)...

(e) in
respect of non-banking, assets and liabilities and all other assets
and liabilties and business of the former bank not
transferred and
vested by paragraph (a)(b)(c), or (d) of the this subsection, be
transferred and vest in the Corporation.

It is
submitted that the equitable mortgage given to the National Bank of
Commerce by Calico Textile Industrias Limited was a
banking asset
and for that reason, the same was not vested in the NBC Holding
Corporation. It is contended that the applicant
has failed to
traverse the averment that there is a misjoinder of the third
respondent, a specific prayer is therefore being
made that the third
respondent be struck out of the application and costs thereof be
awarded to it.

Again in
difference with the respondent's learned counsel, learned counsel
for the applicant contends that as regards joinder
of the third
respondent, section 10(l)(a) and (b) of the National Bank of
Commerce (Reorganisation and Vesting" of Assets
and
Liabilities) Act, 1997
(CNBC
Act), provides for transfer of assets from "specified
branches" of the defunct NBC to one of the three now
entities.
The NBC Debanture dated 26th
July,
1977,
which appears as Annexure "MC 2"
to
the first respondent's counter affidavit does not proclaim the
branch to which it was issued by CALICO. As such, it is caught
by
section 10(l)(e)
of the NBC Act, and could only vest in the NBC Holding Corporation.
It is therefore submitted that the respondent's submission
in this
oonnection lacks basis both in fact and law.

Now, when
the National Bank was re-organized, three new institutions were
established to take over all its functions, assets
and liabilities.
The three institutions so established were the National Bank of
Commece (1997)
Ltd,
the National Microfinance Bank
and the NBC Holding Corporation. Section 10 of the National Bank
of Commerce ( Reorganization and Vesting of Assets and
Liabilities)
Act, No. 23 of 1997 makes provision for the vesting of the assets
and liabilities of the former NBC into the
new institutions.
The relevant part of section 10 is subsection (l)(a)(b) and (e).
It provides that:-

"(1)
Consequent upon the split of the former bank inot the company, the
NMB and the Corporation, all the assets and the liabilities
relating
to the banking business, to which the former bank was entitled or
subject immediately before the vesting date shall,
with effect from
the 1st day of October, 1997, by virtue of this section and without
further assurance -

(a)in
respect of the banking business in the specifiedbranches
constituting the,Company, be transferred to and be vested in the
Company;

(b)in
respect of the banking business in the specified branches
constituting the NBC, be transferred to a be vested in the NMB;

(c).. (d)..

(e) in
respect of non-banking assets and liabilities and all other assets,
liabilities and business of the former bank not transferred
and
vested by paragraph (a) (b), (c) or (d) of this
subsection, be transferred to and be vested in the
Corporation."The
"Company" in section 10 is reference to NBC (1997) Ltd.

According to
Prof. Gondwe the second respondent was made a party to these
proceedings because the NBC debanture under review does
not proclaim
the branch to which it was issued by Calico, By implication he is
arguing that although the debanture is banking
asset;it
should be held to have been transferred to the second
respondent because of the reasonhe
has put forward.

Now, a very
liberal interpretation of section 10 irresistably leads to the
conclusion that the banking business to which mortgoges
and
debantures belong here transferred to the NBC (1997)
Ltd
and to NMB. And, as clearly stated in subsection (l)(e)
no-banking assots were transferred to the second respondent, so
that
the words "... and liabilities and all other assets, liabilities
and business of the former bank...'' which appear in
sub - section
(l)(e) must be construed eusdem
generiswith
the words ''non - banking assets" which preceed them. By reason
of that interpretation the debanture in question could
only be
transferred to NMB or to NBC (1997)
Ltd,
Failure by Calico to declare the branch to which it was issued does
not qualify it to be vested in the second respondent. What
the
applicant should probably do in order to be able to enforce TDFL's
rights under the debanture would be to locate the branch,
for surely
the debanture must have been issued to one. of the branches of the
erstwhile NBC. It is in that circumstances that this
preliminary
point of objection would succeeded.

Now, as
regards the fourth relief, it is' on record that the title deed
registered under certificate of Title No. 15056
was
deposited in court with the consent of all the parties. This prayer
has 'therefore been overtaken by circumstances.

Upon the
foregoing considerations the application would fail. It is
accordingly dismissed with costs. Since the application has
been
dismissed, the need to consider the applicant's objections does not
arise it is ordered that the title deed which is the subject
of this
application be released to the first respondent. Order accordingly.